Citation Nr: 21011730 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-30 208 DATE: March 2, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for degenerative joint disease, left knee (left knee condition) is remanded. FINDING OF FACT Throughout the entire appeal period the Veteran’s PTSD manifests as occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for evaluation for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. § § 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10; 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty service from December 1966 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision pertaining to the increased disability rating claim for PTSD, and the October 2013 rating decision pertaining to the service connection claim for left knee condition by the Department of Veteran Affairs (VA) Regional Office (RO). In the November 2019 Board decision, the Veteran’s claims were denied. The Veteran appealed his claims to the U. S. Court of Appeals for Veterans Claims (Court), and in an August 2020 Order, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), partially vacated the November 2019 board decision, and remanded the matters to the Board for readjudication consistent with the JMPR. In June 2019, the Veteran testified before a Veterans Law Judge (VLJ) who has since retired. He was notified by letter in January 2021 that the VLJ who conducted the June 2019 hearing was no longer employed by the Board and offered the opportunity to have another hearing before a different VLJ. No response was received from the Veteran with 30 days. Therefore, the Board will proceed with adjudication of his claims. In November 2019, the Board remanded a claim for entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability as part of the claim for an increased rating for PTSD. In a March 2020 rating decision, the RO granted a TDIU effective August 1, 2012. Therefore, the TDIU is in effect for the entire appeal period of the underlying increased rating claim for PTSD, which was filed on July 10, 2015. Harper v. Wilkie, 30 Vet. App. 356 (2018). The issue of TDIU is therefore no longer before the Board. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to a disability rating in excess of 50 percent for PTSD is denied. In the August 2020 JMPR, the parties agreed that the November 2019 Board decision that denied a disability rating in excess of 50 percent for PTSD failed to provide adequate reasons or bases. In particular, the Board did not address evidence indicating homicidal ideation, impaired impulse control, and panic. Disability evaluations are determined by applying VA’s rating schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated based on criteria identified by DCs. 38 C.F.R. § 4.27. When reasonable doubt arises as to the degree of disability the issue will be resolved in favor of the claimant. 38 C.F.R. § 4.3. PTSD is rated at 38 C.F.R. § 4.130, DC 9411 under a General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. In the December 2011 VA treatment record, it was noted that the Veteran reported sleep disturbance involving nightmares about his combat experience. Also, he reported irritability and being easily agitated. In the February 2012 VA treatment record, it was noted that the Veteran reported irritability, he is easily agitated, avoidant, and he experiences more intrusive thoughts about his combat experience. His wife reported that his symptoms have worsened, and she described an episode where he was fighting in his sleep. She stated that he had poor impulse control. In the November 2012 VA treatment record, it was noted that the Veteran’s wife reported he is grouchy and is getting worse. The Veteran reported that he is getting annoyed with people, and he dreams about Vietnam. In the February 2013 VA treatment record, it was noted that the Veteran’s thought processes were logical, organized, and goal directed. Also, there were no overt indications of a formal though disorder, paranoia, or other delusional thinking. In the December 2013 VA treatment record, it was noted that the Veteran’s wife reported that he is fighting a lot in his sleep, at least three times per week. It was noted that he is somewhat comfortable in crowds, and he is usually positioning himself so he can overlook situations. In the February 2014 VA treatment record, it was noted that the Veteran stated his mood and sleep remain stable with his medications, and he sleeps 3-4 hours each night. Also, he stated that he feels rested in the mornings, and he denied napping during the day. He stated that his nightmares are not as frequent, and his flashbacks are not every day. In the April 2014 VA treatment record, it was noted that the Veteran’s nightmares are still present. His thought processes appeared coherent, and no loose associations were noted. At the April 2011 VA examination, the VA examiner noted that the Veteran did not report having significant problems at this time and no symptoms that interfere with relationships. Also, he reported that occasionally he is tired but has continued to be able to work without interruption, and he denied having difficulty at work due to psychiatric symptoms. Regarding social history, it was noted that he lives with his wife and his daily activities include work. Also, he stated he has always been a loner and does not have a lot of close friends. It was noted that he has spent his whole career as a truck driver and has never missed a day of work due to psychiatric symptoms. Overall, the VA examiner determined that his mood was euthymic, affect was mood congruent and within normal range. His thought process was linear and goal directed, and his thought content was without obsessions, delusions, paranoias, and suicidal nor homicidal ideation. At the April 2013 VA examination, the VA examiner classified the Veteran’s social and occupation impairment as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Symptoms noted were depressed mood; anxiety; suspiciousness; chronic sleep impairment; flattened affect; disturbances of motivation; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances. Under relevant social/martial/family history, it was noted that the Veteran is a man of few words and his social and communication skills are poor, but he is friendly and can be engaged. Also, his wife was very helpful during the examination. He last worked full time 2 years ago when he worked as a cross country truck driver for 41 years. Also, his anger interfered with his work at times. The examiner noted homicidal ideation “without intent.” Overall, the VA examiner determined that his PTSD was mild with mild social impairment. The Veteran filed his claim for an increased rating for his PTSD on July 10, 2015. When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Thus, the most pertinent evidence is from July 10, 2014 forward. The evidence discussed above is outside the appeal period, and is afforded less probative weight than the evidence describing the severity of the Veteran’s PTSD during the appeal period. At an August 2014 VA medical appointment, the Veteran reported that his mood and sleep were stable with his current medications. He had increased nightmares around the fourth of July. He stated that he had frequent nightmares and had two to three hours of sleep per night. His mood and affect “bright,” his thought processes were linear, and he denied suicidal and homicidal ideation. He also did not report hallucinations. At an October 2014 VA treatment appointment the Veteran’s mood was euthymic, his affect was congruent to his mood, his thought processes and content were within normal limits, and he did not have suicidal or homicidal ideation. His insight and judgment were fair. In the January 2015 VA treatment record, it was noted that the Veteran reported he has been nightmare free for 2 weeks, and he is working on himself by reacting in a calmer manner and controlling his anger. Also, he denied current suicidal ideation. In the April 2015 VA treatment record, it was noted that the Veteran reported that he is working on his listening skills, and he feels he is improving in his personal relationship. Also, he noted that he experiences some irritation, but he is actively working on this and how he reacts to situations. At a March 2016 primary care appointment, he denied suicidal and homicidal ideations, plans, or thoughts. At a March 2016 individual mental health treatment appointment, the Veteran denied suicidal ideation. His thought processes appeared coherent and his speech was normal. At an April 2016 primary care appointment, his mental health was described as “stable,” and he denied suicidal and homicidal thoughts, ideations, and plans. In the June 2016 VA treatment record, it was noted that the Veteran reported infrequent nightmares. He denied suicidal ideation. In the October 2016 VA treatment record, it was noted that the Veteran reported that his relationship is improving, he is attending church with his wife, and he has good boundaries. Also, he stated that his faith is most important and is helping him negate PTSD symptoms. In the January 2017 VA treatment record, it was noted that the Veteran reported intermittent nightmares and night sweats. Also, he has some intrusive thoughts about Vietnam but is accepting of them. These thoughts do not have as much influence over his emotional state, and he has learned to acknowledge them but not dwell on them. In the April 2018, October 2018 and 2019 VA treatment records, it was generally noted that the Veteran was oriented to his own ability and knows his own limitations. At an October 2019 VA care appointment, the Veteran stated that his symptoms were controlled. He denied suicidal and homicidal thoughts or plans. His sleep was “adequate.” At his September 2015 VA examination, the VA examiner classified the Veteran’s social and occupation impairment as due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks. Symptoms noted were depressed mood; anxiety; suspiciousness; chronic sleep impairment; flattened affect; disturbances of motivation; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances. Under relevant social/martial/family history, it was noted that the Veteran has been married to his wife for 21 years, and his wife stated that he does not engage in fun activities or do things as he did in the past. He reported that noise, crowds, and his grandchildren can irritate him. Also, he sleeps 3-4 hours per night and has nightmares and may be combative during his nightmares. He worked 43 or 44 years as a cross country truck driver and retired a couple years ago. Overall, the VA examiner determined that he was calm, showing no anxiety during the examination. He did not report anxiety associated with his nightmares and excessive noise, and he denied depression and did not present as depressed. Also, there was no evidence of delusions or hallucinations. At his June 2019 Board hearing, he testified that he had nightmares. He stated that he did not like people around. He stated that he did not have thoughts about injuring himself. He stated that that sometimes people made him “want to do something to them.” His representative then stated, “[b]ut in other words, when someone says or does something not nice to you, you don’t think about just doing something to them, you think about getting rid of them, is that correct?” To which the Veteran responded, “[r]ight you know on[e] way or the other, by leaving.” He also testified that he “sometimes” felt like he was “not in control anymore.” The Board finds a disability rating in excess of 50 percent is not warranted because the Veteran’s PTSD more closely resembled occupational and social impairment with reduced reliability and productivity. The Veteran experienced various mood impairments such as depression, anxiety, irritability, anger management problems, and passive homicidal ideation during the appeal period. Simply because the Veteran experiences anxiety and depression, and because the 70 percent level contemplates a deficiency in “mood” among other areas, does not mean his PTSD rises to the 70 percent level. Indeed, the 30 percent, 50 percent, and 70 percent criteria each contemplate some form of mood impairment. The Board, instead, must look to the frequency, severity, and duration of the impairment. See Vazquez-Claudio, 713 F.3d at 117. Here, the Veteran’s mood impairments are expressly contemplated by the 50 percent criteria, which contemplates “disturbances” in mood. 38 C.F.R. § 4.130. The Veteran is adequately compensated for these impairments. For example, his anxiety and depression have not been “near continuous,” which is the severity contemplated by the 70 percent rating. His moods have generally been descried as euthymic and stable. His mood impairments do not affect his ability to function independently, appropriately, and effectively, which is an example of the level of severity contemplated by the 70 percent criteria. Regarding panic, the JMPR states that the September 2015 VA examination report described panic. The Veteran reported to the examiner that he began mental health treatment in 2012 due to feelings of anxiety and panic, as well as nightmares. The September 2015 VA examiner did not find that the Veteran had panic attacks. Panic attacks are expressly contemplated by the 30 and 50 percent criteria. In order for panic to rise to the level of severity contemplated by the 70 percent criteria, it would need to be “near continuous,” that is not supported by the record. The medical and lay evidence of record does not reflect that he has panic attacks at all. The Veteran instead reported “feelings of …pan[i]c.” The record does not show that he experiences a feeling of panic near continuously. Feelings of panic are not documented elsewhere in the medical record and are not described in the lay evidence. The preponderance of the evidence supports a finding that his reported feelings of panic in September 2015 do not rise to the severity contemplated by “near continuous” panic. Regarding impulse control, while the Veteran may have difficulty adapting to stressful circumstances at work and has been described as irritable or displaying impaired impulse control at times, his overall impairment is still more akin to his currently assigned 50 percent rating. His mood is generally stable. The type of impairment contemplated by the 70 percent level is described as “unprovoked irritability with periods of violence.” Although he stated at his hearing that sometimes he felt like he was not in control, the record does not show that he has had unprovoked irritability with periods of violence. His irritability and feelings of poor impulse control are less severe and are more accurately described as disturbances in mood. He has also consistently denied suicidal ideation throughout the period on appeal. Regarding homicidal ideation, prior to the appeal period, homicidal ideation “without intent” was noted in an April 2013 VA examination report. Subsequently, during the appeal period, the Veteran consistently denied experiencing homicidal ideation. This diminishes the probative value of the April 2013 finding. The specific denials of homicidal ideation during the period on appeal are a more accurate depiction of his symptoms. At his hearing, the Veteran endorsed vague thoughts of wanting to harm people who upset him. However, his statements do not rise to the level of frequency, severity, or duration to meet the 100 percent criteria, which contemplate a “persistent danger of hurting … others.” The record does not show that the Veteran has been a danger to others at any point during the appeal period. Instead, he consistently denied homicidal ideation during the appeal period except at his hearing, when he stated he thought of harming people who angered him, but did not state he had ever acted on it. Further, he does not have total social impairment due to his PTSD symptoms and a 100 percent rating is not warranted. He has been married to his spouse since 1993, but whom he met in 1980. He also attends church services. In June 2016, July 2016, and October 2016 VA treatment records, he described the importance of his faith and church attendance. In a July 2017 mental treatment record, it was also noted that he enjoyed going to church and being with his wife. “Total” is defined as “whole, not divided; full; complete,” and “utter, absolute.” Black’s Law Dictionary, 1498 (7th ed. 1999). The record does not show that total social impairment is present. He remains in a long term relationship and engages in the social activity of attending church services. Therefore, the Board finds that the Veteran’s PTSD does not warrant a disability rating in excess of 50 percent at any time during the appeal period. REASONS FOR REMAND Entitlement to service connection for a left knee condition is remanded. In the August 2020 JMPR, the parties agreed that the November 2019 Board decision that denied service connection for a left knee condition failed to consider continuity of symptomatology. In the November 2012 VA examination, the VA examiner opined that the Veteran’s left knee condition is not related to his in-service left knee complaint. The VA examiner reasoned that the Veteran had left knee pain once over 40 years ago and was not diagnosed with his current left knee condition until September 2012. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the November 2012 VA medical opinion did not address the Veteran’s assertions of continuity of his left knee symptoms. Therefore, a supplemental medical opinion is necessary. The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to a qualified examiner to determine the etiology of the Veteran’s left knee condition. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. The March 1969 service treatment record where it notes the Veteran complained of left knee pain. b. The November 2012 VA examination where it notes that the Veteran’s left knee problems have progressively worsened over the years. c. The June 2019 hearing transcript where the Veteran testifies that his left knee symptoms continued after service, but he did not complain about it over the years to anyone. The examiner must opine as to whether the Veteran’s left knee condition is at least as likely as not (50 percent or greater probability) began during active service, or is related to an incident of service. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. 2. If the claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran an opportunity to respond. The case should then be returned to the Board, if in order, for further review. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.